Gavin Howe
The right to privacy is a complex and evolving topic in law, with varying interpretations in different countries. While it is not explicitly mentioned in the US Constitution, the Supreme Court has inferred a right to privacy from the First, Third, Fourth, Fifth, and Ninth Amendments. This interpretation has been used in landmark cases such as Griswold v. Connecticut (1965) and Roe v. Wade (1973), where the Court extended privacy rights to married couples and individuals seeking abortions, respectively. In contrast, countries like Australia lack constitutional privacy rights but have privacy acts that provide some protection. The evolution of technology and global surveillance practices have further complicated the debate, with ongoing discussions about balancing privacy with national security and the capabilities of intelligence agencies.
| Characteristics | Values |
|---|---|
| Number of national constitutions that mention the right to privacy | Over 185 |
| Countries with a right to privacy | New Zealand, United States |
| Countries without a constitutional right to privacy | Australia |
| Privacy laws that apply to both public and private sector actors | The Privacy Act 1988 (Australia) |
| First Amendment protection of privacy is greatest when | Invasion of privacy occurs in the home or in other places where an individual has a reasonable expectation of privacy |
| Supreme Court cases where the right to privacy was recognized | Griswold v. Connecticut (1965), Eisenstadt v Baird (1971), Roe v. Wade (1973), Lawrence v. Texas (2003) |
| Supreme Court justices who have recognized the right to privacy | Justice Harlan, Justice Douglas, Justice Thurgood Marshall, Justice William O. Douglas, Justice Louis D. Brandeis |
| Legal traditions that recognize the right to privacy | Civil law, common law |
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What You'll Learn
Privacy laws in the US
In the United States, the right to privacy is not explicitly mentioned in the Constitution. However, the Supreme Court first recognised the "right to privacy" in Griswold v. Connecticut (1965). The Court found that the Constitution creates a "zone of privacy" derived from penumbras of other explicitly stated constitutional protections. Specifically, the Court interpreted the personal protections expressly stated in the First, Third, Fourth, Fifth, and Ninth Amendments to imply a right to privacy.
In privacy cases post-Griswold, the Supreme Court has often relied on Justice Harlan's concurrence, which found a right to privacy derived from the Fourteenth Amendment. Notable cases include Eisenstadt v Baird (1971), Roe v. Wade (1973), and Lawrence v. Texas (2003). In Eisenstadt, the Supreme Court extended the right to privacy regarding contraception to unmarried couples. In Lawrence, the Court used the Fourteenth Amendment to extend privacy rights to "persons of the same sex [who choose to] engage in... sexual conduct."
The right to privacy has been invoked in a range of civil liberties cases, including Pierce v. Society of Sisters, which invalidated an Oregon initiative requiring compulsory public education, and Roe v. Wade, which struck down an abortion law in Texas and restricted state powers to enforce abortion laws. However, after the Dobbs v. Jackson Women's Health Organization decision in 2022, the Court overturned Roe v. Wade, and the right to abortion no longer falls under the broader right to privacy.
At the state level, Pavesich v. New England Life Insurance Company (1905) was one of the first specific endorsements of the right to privacy as derived from natural law in US law. Additionally, California has passed several privacy laws, including the "Shine the Light" law, which outlines rules for businesses regarding the use of customers' personal information, and the Reader Privacy Act, which protects users of book services from the disclosure of their personal information.
While the right to privacy in the US has a long and evolving history, it is primarily derived from interpretations of the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments, and continues to be shaped by Supreme Court decisions and state-level legislation.
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Privacy laws in New Zealand
New Zealand is committed to the Universal Declaration of Human Rights and has ratified the International Covenant on Civil and Political Rights, both of which include a right to privacy. Privacy law in New Zealand is dealt with by statute and common law. The Privacy Act 2020 addresses the collection, storage, and handling of information. The Act protects "personal information," which refers to information about an identifiable individual, excluding those who are deceased. This includes information such as a home address, which is not necessarily sensitive but can be used to identify a specific individual.
The Act applies to businesses operating in New Zealand, regardless of whether they have a physical presence in the country. This means that international companies conducting business in New Zealand and holding New Zealanders' personal information must comply with New Zealand law, even if their servers are located elsewhere. The Act also applies to individuals who are not ordinarily resident in New Zealand but who obtain personal information while in the country.
The Privacy Act 2020 introduced several key changes. Agencies must now report privacy breaches that have caused or are likely to cause serious harm to the Privacy Commissioner and notify the affected individuals. The Privacy Commissioner has the authority to issue compliance notices, and failure to comply can result in penalties of up to $10,000. Additionally, New Zealand agencies must ensure that personal information sent overseas is protected by privacy standards equivalent to those in New Zealand.
In New Zealand, a general tort of invasion of privacy exists. The case of Tucker v News Media Ownership Ltd is considered the first case to suggest that a tort of privacy may exist in New Zealand law. The judge in Bradley v Wingnut Films acknowledged the existence of this tort but advised caution as it was still in its early stages of development. The New Zealand Court of Appeal in Hosking v Runting affirmed the existence of a tort of privacy, recognizing the need for protection in this area.
The Broadcasting Act 1989 requires broadcasters to maintain standards that respect the privacy of individuals. This Act established the Broadcasting Standards Authority (BSA), which handles complaints against broadcasters and issues opinions and codes of practice relating to ethical conduct and standards in broadcasting. While the Act does not define a breach of privacy, the BSA has seven principles relating to alleged breaches.
The New Zealand intelligence and security agencies, GCSB and SIS, have been given expanded powers for surveillance under recent legislation. This has raised concerns among organizations such as the New Zealand Law Society, the New Zealand Human Rights Commissioner, and the Privacy Commissioner about the potential infringement of ordinary New Zealanders' privacy rights.
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Privacy laws in Australia
Australia regulates data privacy and protection through a mix of federal, state, and territory laws. The federal Privacy Act 1988 ("Privacy Act") and the Australian Privacy Principles ("APPs") contained therein apply to private sector entities and all Commonwealth and Australian Capital Territory Government agencies. The Privacy Act includes 13 Australian Privacy Principles (APPs) that deal with all stages of the processing of personal information, setting standards for its collection, use, disclosure, quality, and security. The APPs apply to government agencies and private sector organisations with an annual turnover of $3 million or more.
The Privacy Act also regulates the privacy component of the consumer credit reporting system, tax file numbers, and health and medical research. It provides for the protection of personal information collected and held by Australian Government agencies and certain private sector organisations. The Act was amended in December 2022 as part of the Australian Government's urgent reforms in response to data breaches. The Notifiable Data Breaches scheme commenced as part of the Privacy Act on 22 February 2018. The Privacy Act Amendment Act was passed in late 2024, amending the Privacy Act.
In addition to the Privacy Act, other laws impact privacy and data protection for specific types of data or activities, such as the Telecommunications Act 1997, the Criminal Code Act 1995, the National Health Act 1953, the Health Records and Information Privacy Act 2002 (NSW), the Health Records Act 2001 (Vic), and the Workplace Surveillance Act 2005 (NSW). The Telecommunications (Interception and Access) Act 1979 prohibits covert access to communications except as authorised by this Act.
There is no absolute right to privacy in Australian law, and there is no clearly recognised tort of invasion of privacy. However, privacy is affected and protected in limited ways by common law and a range of federal, state, and territorial laws, as well as administrative arrangements. Two Australian cases since 2003 have recognised a common law right of action for invasion of privacy. In the 2003 Queensland District Court decision in Grosse v Purvis, the court awarded damages to the plaintiff for the defendant's breach of privacy. In a subsequent decision, the High Court in Lenah Game Meats indicated that the 1937 High Court decision in Victoria Park Racing & Recreation Grounds Co Ltd v Taylor, which had previously been a major obstacle to the recognition of a right to privacy in Australia, was no longer a barrier.
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Privacy laws and the First Amendment
The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 185 national constitutions mention the right to privacy. While privacy laws apply to both public and private sector actors, the specific legal protections and implementations vary across jurisdictions.
In the United States, the Supreme Court first recognised the "right to privacy" in Griswold v. Connecticut (1965). The Court found an implied right to privacy in the Constitution, derived from the penumbras of other explicitly stated constitutional protections. Justice William O. Douglas placed this right to privacy in the zone of privacy created by the First, Third, Fourth, Fifth, and Ninth Amendments.
The "right to be let alone" was first explicitly asserted in an 1890 article in the Harvard Law Review, titled "The Right to Privacy," written by Samuel D. Warren II and Louis Brandeis. This article is often cited as the first explicit finding of a U.S. right to privacy and has influenced subsequent interpretations of civil law and torts related to privacy.
Privacy claims often clash with First Amendment rights. For example, individuals may claim a privacy right to be "let alone" when the press reports on their private life or intrudes on their private property. While the First Amendment protects freedom of speech and the press, privacy interests, particularly in the home, are also protected. The Supreme Court has had to balance these competing rights in cases such as Packer Corporation v. Utah (1932) and Stanley v. Georgia (1969).
The right to privacy has been invoked in several landmark Supreme Court cases, including Roe v. Wade, which struck down an abortion law in Texas, and Lawrence v. Texas, which invalidated a Texas sodomy law. These cases extended the right to privacy to encompass personal liberties and restrict state actions. However, the Court's decisions have also evolved over time, as seen in Dobbs v. Jackson Women's Health Organization (2022), which overturned Roe v. Wade and excluded the right to abortion from the broader right to privacy.
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Privacy laws and the Fourteenth Amendment
The right to privacy is an element of legal traditions that aims to restrict government and private actions threatening the privacy of individuals. While the US Constitution does not explicitly mention the right to privacy, this right has been inferred from the Constitution's text and its Amendments. The Fourteenth Amendment prohibits states from making laws that violate personal autonomy protections provided for in the first 13 Amendments.
The Fourteenth Amendment's concept of personal liberty and restrictions on state action is broad enough to encompass a woman's decision to terminate her pregnancy. In Roe v. Wade (1973), the Supreme Court extended the right to privacy under the Fourteenth Amendment to a woman's decision to have an abortion. However, this was overturned in Dobbs v. Jackson Women's Health Organization (2022), where the Court ruled that abortion no longer falls under the broader right to privacy.
In Eisenstadt v. Baird (1971), the Supreme Court extended the right to privacy under the Fourteenth Amendment to the right of unmarried couples to purchase contraceptives. The Court held that the constitutionally protected right of privacy belongs to the individual rather than the marital couple.
In Lawrence v. Texas (2003), the Supreme Court relied on the Fourteenth Amendment to extend the right to privacy to same-sex couples engaging in sexual conduct. The Court ruled that such couples are entitled to respect for their private lives, relying on the Fourteenth Amendment's guarantee of due process.
The right to privacy is also protected by various federal statutes and state laws. The Fair Credit Reporting Act, for example, provides data protection for personal financial information collected by credit agencies. The Privacy Act of 1974 prevents the federal government from disclosing personal information without authorization. The Computer Fraud and Abuse Act bars the unauthorized use of protected computers, including smartphones and internet-connected devices. These laws demonstrate how privacy rights are safeguarded through a combination of constitutional interpretations, federal statutes, and state laws.
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Frequently asked questions
The US Constitution does not explicitly mention a right to privacy. However, the Supreme Court has inferred it from the language of the First, Third, Fourth, Fifth, and Ninth Amendments.
In Griswold v. Connecticut (1965), the Supreme Court found a right to privacy, derived from penumbras of other explicitly stated constitutional protections. The Court used the personal protections expressly stated in the First, Third, Fourth, Fifth, and Ninth Amendments to find that there is an implied right to privacy in the Constitution.
The right to privacy has been used in a wide range of civil liberties cases, including Pierce v. Society of Sisters, Roe v. Wade, Eisenstadt v Baird, and Lawrence v. Texas.
Over 185 national constitutions mention the right to privacy. New Zealand, for example, has ratified the International Covenant on Civil and Political Rights, which contains a right to privacy. Australia, on the other hand, does not have a constitutional right to privacy, but it does have a Privacy Act that provides some protection.
